Considered and decided by Randall,
Presiding Judge, Klaphake, Judge, and Poritsky,
Judge.1

R. A. Randall, Judge.

Affirmed

UNPUBLISHED OPINION

Housing & Redevelopment Authority of Duluth (HRA) appeals a jury
award in a personal injury action alleging appellant had no duty
to warn respondent in the absence of an actual defect in the
property. HRA also argues it had no duty to warn of a danger
or defect that arose from respondent's own negligence; and claims
that respondent's actions of leaving a window open, in the winter,
was an open and obvious danger, which did not give rise to a
duty to warn. We affirm.

FACTS

Respondent, Kenneth Kelly, rented an 11th floor apartment from
appellant, HRA of Duluth. In January 1996, respondent opened
a window in his apartment to ventilate his apartment because
he was smoking and then went to bed. The temperature was 20 degrees
below zero. During the evening, the hot water radiator, which
was located three feet under the window, froze and spilled approximately
1 1/2 to 2 inches of hot water onto the floor. The manager went
to Kelly's apartment because a tenant below Kelly had complained
to the manager about water coming into her apartment from above.
When the manager opened the door, it awoke Kelly, who then walked
through the hot water (unknowingly) in his bare feet toward the
door. Kelly incurred approximately $180,000 in medical bills
because of burns to his feet, legs, and hands from contact with
the hot water.

In buildings owned by HRA, pipes previously had frozen and broken
when tenants left windows open to cool apartments down. One incident
resulted in property damage; however, there is no evidence in
the record about personal injuries on any occasion.

HRA moved for summary judgment following discovery, arguing that
no defective condition existed that would require a duty to warn
respondent, and that Kelly created the condition. The district
court denied the motion on June 22, 1999, determining that there
existed fact questions for the jury whether (a) HRA had knowledge
that would cause a prudent owner to suspect a danger existed,
(b) Kelly, exercising due care, would not have discovered the
condition, and (c) whether HRA had a duty to disclose the information
to respondent.

Kenneth Kelly passed away from unrelated causes and Shawn Kelly,
his son, was substituted. A jury trial was held on May 15 and
16, 2001. The parties earlier stipulated to damages, thus the
jury determination was only on liability. The jury returned a
verdict, stating that each party was 50 percent at fault, thus,
the district court entered judgment for respondent for 50 percent
of the damages.

Following the jury verdict, HRA brought a motion for judgment
notwithstanding the verdict, or in the alternative, a new trial,
arguing that (1) it had no duty to warn without an actual defect
in the premises, (2) a landlord has no duty to warn of conditions
that result from the tenant's negligence, and (3) the condition
in Kelly's apartment was open and obvious. HRA further asserted
that the district court gave erroneous jury instructions regarding
a landlord's duty to a tenant. HRA argued that the instruction
failed (1) to inform the jury that the defective condition had
to exist at the time the tenant took possession and (2) to state
a landlord does not have a duty to warn of a condition that was
unsafe due to the tenant's actions.

The district court denied HRA's motion and entered a verdict in
Kelly's favor for $74,074.95. HRA appeals.

DECISION

To determine the propriety of an order denying judgment notwithstanding
the verdict, the applicable standard is whether there is any
competent evidence reasonably tending to sustain the verdict.
A motion for judgment notwithstanding the verdict admits every
inference reasonably to be drawn from the evidence as well as
the credibility of the testimony for the adverse party. "Unless
we are able to determine that the evidence is practically conclusive
against the verdict, or that reasonable minds could reach but
one conclusion against the verdict, the trial court's order denying
the motion for judgment notwithstanding the verdict should stand."
Bisher v. Homart Dev. Co.,
328 N.W.2d 731, 733 (Minn. 1983).
Whether a legal duty exists is generally a question of law for
this court to determine de novo.
Johnson v. State,
553 N.W.2d 40, 49 (Minn. 1996).

We find enough evidence in the record to support the verdict that
HRA had a duty to warn Kelly that the pipes may freeze and burst
if he left the window open during the cold weather. Under common
law liability a landlord is not liable to a tenant for injuries
caused by defective conditions existing at the time the premises
were leased unless:

(1) [T]here is a hidden dangerous condition on the premises of
which the landlord is aware, but the tenant is not; (2) the land
is leased for purposes involving admission to the public; (3)
the premises are still in control of the landlord; and (4) the
landlord negligently repairs the premises.
Broughton v. Maes,
378 N.W.2d 134, 135 (Minn. App. 1985),
review denied (Minn. Feb. 14, 1986).

The landowners' duty of reasonable care includes the duty to warn
entrants of obvious dangers when the landowners can anticipate
that harm will occur despite the obvious nature of the danger.
See, e.g.,
Peterson v. Rawleigh Co.,
274 Minn. 495, 497-98, 144 N.W.2d 555, 558 (1966)
(holding that landlord had duty to warn of anticipated
slippery conditions on his premises). In this
case, Mr. Haldorson, a HRA maintenance mechanic, stated in his
deposition that he remembers four different flooding incidents
that occurred in similarly designed buildings owned by HRA, between
1989 and 1991, caused by pipes freezing and bursting. The record
shows that there have been at least six incidents of pipes freezing
and bursting in Midtown Manor and other similar buildings dating
back to the 1990's. There is evidence that HRA knew that once
the pipes burst, hot water will continue to escape until a technician
enters the apartment, takes the radiator cover off and shuts
off the valve. Therefore, it could be foreseeable, because of
the location of the pipes and the previous incidents of broken
pipes, that a tenant could leave a window open and be injured
by hot water resulting from a broken pipe. We agree with HRA
that the evidence supporting the verdict is not overwhelming,
but that is not the issue. The issue is whether the record contains
enough evidence to support a jury verdict, giving that jury deference
on issues of credibility and fact-finding, as we must.

HRA argues that a landlord has no legal duty to warn of a dangerous
condition that arises from the injured party's own actions. Generally,
a person generally has no duty to protect another, "even if he
realizes or should realize that action on his part is necessary."
Bigos v. Kluender,
611 N.W.2d 816, 820 (Minn. App. 2000)
(quotation omitted), review denied (Minn. Jul. 25, 2000).
In this case, the evidence shows that the condition resulted
not just from Kelly's negligence but that the dangerous
condition resulted from the location of the pipes on
an exterior wall, the high degree of the water's
temperature, and the fact that once the pipes burst,
hot water and steam would continue to escape until
a maintenance man turned the pipes off. The evidence shows that
Kelly was unaware that (1) that the heating system was a hot
water system, (2) if the window was left open in extremely cold
weather the pipes would freeze and burst, and (3) if the pipes
burst, the temperature of the escaping water was between 190
and 200 degrees, which could result in injuries. HRA was aware
that tenants opened windows to ventilate apartments and that
the pipes would freeze and emit hot water until the valve was
shut off. The evidence on the record is sufficient to sustain
the verdict.

Affirmed.

Footnotes:

1.
Retired judge of the district court, serving as judge of
the Minnesota Court of Appeals by appointment pursuant to Minn.
Const. art. VI, § 19.
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